What the hell is a medical cannabis collective anyways?

The term collective has been basically used to describe any and every cannabis business and group of growers here in California .

Grow a bunch of weed? You are a collective. Have a dispensary with 100,000 patients? You are a collective. Make edibles for 50 dispensaries? Yup…collective. Grow 20 plants in your backyard for you and your friends? You guessed it….it is a collective. Run a lab that tests samples from dispensing collectives? You might also be a collective. Cannabis farmer’s market? Still a collective. Growing 500 plants under ten 1000w lights in a gutted townhouse? You guessed it….a collective.

The term collective has become synonymous with cannabis business. There are a few groups who file their business as a “cooperative,” but because of paperwork requirements that come with the definition of cooperative, most cannabis businesses in California have dubbed themselves a collective.

So how the hell did we get here?

Simple…..bad law written in a time of fear and intolerance. Flashback to 2003 when the medical cannabis industry was still very new and there were very few dispensaries that made up the California landscape. Lawmakers were pressured to pass SB 420 in California to more clearly define the medical marijuana program here.

In enacting the bill it was the intent of the legislature to:

• “clarify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers”
• “promote uniform and consistent application of the act among the counties within the state”
• “enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects”
• “address additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act”

The final guidelines were decided in a last-minute legislative deal by Attorney General Lockyer and Sen. John Vasconcellos in order to get the bill passed.

The reality is that the term “collective” was inserted in as a compromise to supposedly allow for bigger garden projects, and to allow patients to work together to produce their medicine. Because the term “collective” has no defined meaning in California state law, our industry has been able to use the loosely worded terminology to build a robust program out of the gray areas. It is now being used to question the validity of the entire industry.

In 2008, then Attorney General for the State, Jerry Brown, released the Attorney General Guidelines for the Security and Non-Diversion of Cannabis grown for Medical Use. These guidelines were meant to further clarify the program, but were non-binding and largely ignored in real life. But even the Attorney General had a tough time with the term “collective. Here is what he wrote in the guidelines:

Collectives: California law does not define collectives, but the dictionary  defines them as “a business, farm, etc., jointly owned and operated by the members  of a group.” (Random House Unabridged Dictionary; Random House, Inc. © 2006.) Applying this definition, a collective should be an organization that merely facilitates the collaborative efforts of patient and caregiver members – including the allocation of costs and revenues. As such, a collective is not a statutory entity, but as a practical matter it might have to organize as some form of business to carry out its activities. The collective should not purchase marijuana from, or sell to, non-members; instead, it should only provide a means for facilitating or coordinating transactions between members.

That is right….The AG went to a Random House Dictionary to define collective. Sounds legit?

But the same gray area that we have used to build an industry out of thin air is now coming back to bite us in the ass. Law enforcement and opposing public officials continue to question the legitimacy of cannabis-based businesses definition of “collective.” One court case after another attempts to clarify the meaning of collective, but what has resulted is a series of overlapping and often conflicting case laws that do not protect the collective, or support law enforcement positions. It seems to become more vague with every ruling.

Which brings us to our current conundrum.

California is proposing a regulatory model in the State legislature (AB 604) that will likely remove the term “collective” from the books, and replace it with a system of licensed business models for producers and dispensers of medical cannabis. I will admit, I was a little taken back at first because the term “collective” has been a part of the California lexicon for a long time, and virtually everyone hides behind this moniker.

Here is what the bill does to remove it:

Section 11362.775 will be repealed 90 days after the Department of Alcoholic Beverage Control posts a notice on its Internet Web site… this is the section:

11362.775.

(a)  Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.

(b) This section shall remain in effect only until 90 days after the Department of Alcoholic Beverage Control posts a notice on its Internet Web site that it began accepting applications for mandatory commercial registration pursuant to Article 3 (commencing with Section 26040) of Chapter 18 of Division 9 of the Business and Professions Code, and as of that date is repealed.

A kneejerk reaction will make you think “My God. They are taking something away from us! No. Stop. Please don’t.”

But then I started to think about it and my thought is that the term “collectives,” as it is used now, needs to die an honorable death.

I hear the screams from the nutjobs now. “But Mickey…..patients need the right to cultivate collectively as a group to produce low cost medicine.”

Okay. So who ever said they couldn’t?

Proposition 215 grants immunity from prosecution for patients who cultivate. It says:

   (d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. 

Nowhere in the law does it say that you must cultivate by yourself. So if a true patient oriented collective is in operation…say 5 patients have come together to grow a garden, what in the law says that they cannot do that if the “collective” language was removed from SB 420? Where does the California law not allow for more than one qualified patient or caregiver to garden together?

It doesn’t.

The screams you will hear are from people who currently operate a business disguised as a collective and who turn a decent profit for producing cannabis in a non-regulated market. Folks who abhor the idea of a regulated system with clear boundaries and rules are those who are getting by making their money in the gray area of the law. I feel their  pain…..not.

As a person who has invested a lot into above board business practices and self-regulation, I welcome a more clearly defined system for production and distribution of cannabis. I want to know what the rules are and how to play by them, so that I do not invest a lot into a model that is deemed illegal because there is no clarification of what my “collective” is supposed to do. Is an edible company a collective? Who the fuck knows any more? But I know I would like to know where I stand, and more so, that those competing with me in the market are held to the same standards for quality and professionalism as I am.

I am more than happy, as a commercial producer, to pay a yearly licensing fee and meet regulatory requirements for my cannabis business. I am tired of dancing around the collective issue and trying to fit my organization into the loose definition of a collective to make myself feel better. I would be MUCH more comfortable knowing the work I was doing was under a protected license from the State of California, and that just maybe the Feds would back up off of their random prosecutions.

I do not see the removal of “collectives” as a threat to cooperative patient cultivation in any way. There is nothing in the law that outlaws multiple patients cultivating their gardens at the same location. It is a myth that the term “collective” protects this scenario.

What it does attempt to protect is the current system of unlicensed and unregulated producers, which I believe will be better served by a real system of regulation and licensing. If you want to run a business that sells cannabis to patients then get a professional facility and a license to do your work that does not leave so much up to interpretation of the law.

Otherwise, just be an outlaw and do your thing on the black market. Those of us looking to legitimize the industry and return cannabis to its rightful place in society understand the need for regulations and boundaries in our work. We do not fear it. We welcome it. The state can come inspect my facility today if they want. We are ready for them. We have already regulated ourselves far more than the state will ever do.

But it is easy to see how those operating outside of the norms of proper regulation, but just enough within the loose definition of “collective” to feel legal, will have a problem with the future should California pass AB 604. Yeah…it is gonna be tough to steal power and grow a ton of herb in your garage with dangerous pesticides and no standards of production. Sorry.

I suggest you take the money from your next crop and invest in your business for once instead of new rims for your giant pick-up truck this year. Begin preparing for the future because it is coming. Maybe not in AB 604 if the CA Legislature punts again, but it will come. No better time to realize that than now and begin evolving.

Or you can scream and yell about how awesome “collectives” are without really having a clue what the fuck that means.

I am happy to trade the vague definition of collective in for a license registered with the State. You should be too.

What the hell is a medical cannabis collective? It is confusing is what it is; and we should all welcome the end of the collective dance and the beginning of real business acknowledgement. Do not let the wingnuts convince you that we must keep the term collective to save some romantic understanding of yesterday. We do not.

Tomorrow is here and it is time for California to take the next step in defining and regulating the many different cannabis businesses that make up the industry for what they are….businesses. Anything less is unacceptable.